United States District Court, D. Nevada
ORDER APPLICATION TO PROCEED IN FORMA PAUPERIS (EFC
NO. 1) AND COMPLAINT (EFC NO. 1-1)
Ferenbach, United States Magistrate Judge
the Court are Plaintiff Stephen Choate's application to
proceed in forma pauperis (ECF No. 1) and complaint
(ECF No. 1-1). For the reasons stated below, Choate's
in forma pauperis application is granted. The Court,
however, orders that Choate's complaint be dismissed
filings present two questions: (1) whether Choate may proceed
in forma pauperis under 28 U.S.C. § 1915(e) and
(2) whether Choate's complaint states a plausible claim
for relief. Each is discussed below.
Whether Plaintiff May Proceed In Forma
application to proceed in forma pauperis is granted.
Under 28 U.S.C. § 1915(a)(1), a plaintiff may bring a
civil action “without prepayment of fees or security
thereof” if the plaintiff submits a financial affidavit
that demonstrates the plaintiff “is unable to pay such
fees or give security therefor.” According to
Choate's affidavit, he is incarcerated, he does not
receive money from any outside source, and his inmate balance
would not cover the filing fees. (ECF No. 1 at 1-3).
Choate's application to proceed in forma
pauperis is, therefore, granted.
Whether Choate's Complaint States a Plausible
Legal Standard for Reviewing the Complaint
the Court grants Choate's application to proceed in
forma pauperis, it must review Choate's complaint to
determine whether the complaint is frivolous, malicious, or
fails to state a plausible claim. 28 U.S.C. §
1915(e)(2)(B). Federal Rule of Civil Procedure 8(a) provides
that a complaint “that states a claim for relief”
must contain “a short and plain statement of the claim
showing that the [plaintiff] is entitled to relief.”
The Supreme Court's decision in Ashcroft v.
Iqbal states that to satisfy Rule 8's requirements,
a complaint's allegations must cross “the line from
conceivable to plausible.” 556 U.S. 662, 680 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 547, (2007)).
pro se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)). If the Court dismisses a complaint under §
1915(e), the plaintiff should be given leave to amend the
complaint with directions as to curing its deficiencies,
unless it is clear from the face of the complaint that the
deficiencies could not be cured by amendment. Cato v.
United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
Statute of Limitations
brings a civil rights complaint pursuant to 42 U.S.C. §
1983. (ECF No. 1-1 at 1). Choate states his constitutional
rights were violated between “2013-2017.”
(Id. at 1). Choate does not give any more specific
dates regarding his allegations. In Nevada, the applicable
statute of limitations for 42 U.S.C. § 1983 claims is
two years. Perez v. Seevers, 869 F.2d 425, 426 (9th
Cir. 1989) (per curiam); Abram v. City of Reno, No.
315-cv-00029-MMD-WGC, 2015 WL 5829886, at *3 (D. Nev. Oct. 6,
2015). The statute of limitations may be tolled in certain
circumstances. See Trimble v. City of Santa Rosa, 49
F.3d 583, 585 (9th Cir. 1995); Seino v. Emp'rs Ins.
Co. of Nev., 111 P.3d 1107, 1112 (Nev. 2005).
on the vague allegations regarding the timing of
Defendants' actions, the Court cannot determine whether
Choate's claims are time-barred. Therefore, Choate's
complaint is dismissed without prejudice. Choate must file an
amended complaint stating what actions took place within the
two-year time frame preceding December 11, 2017 (the date
Choate filed his application for leave to proceed in
forma pauperis) or an explanation of why tolling would
apply. The amended complaint must be “complete in
itself, including exhibits, without reference to the
superseded pleading.” LR 15-1.
the Court has dismissed each of Choate's claims with
leave to amend, the Court will also provide further guidance